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The second IPR Enforcement Directive: Legal means already available

2005/0127 (COD)

Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights

• The legal means to combat piracy and counterfeiting are already available. The proposal is not essential, the Community lacks competence.
• The directive does not make any distinction between piracy and ambiguous infringements of "intellectual property" rights. Decent people can be treated as organised criminals. For instance, beyond clear case of counterfeiting, trade marks cases are complicated and subtle. Beyond clear cases of piracy and counterfeiting civil sanctions are sufficient.
• Contestable and weak rights gain great threat potential, the desired freedom to act in the market is inhibited. For instance patents are not properly tested. Utility models rights are not examined before they are granted. Unregistered Community Design rights arise automatically. Registered Community Design applications are given essentially no substantive examination.
• The directive harmonises the enforcement of substantive law that is not harmonised. Harmonisation of just those areas of intellectual property law that have been harmonised, would not help. Notably copyright is still fairly different in the member states, even though the minimum standards have been harmonised by directives. E.g, exclusively in the Netherlands every printed matter is copyright protected regardless of its level of originality (normally an explict requirement in copyright law) ("geschriftenbescherming"). Germany has a large body of copyright contract law, while the Netherlands has nothing in this area.
• The directive adopts a general concept of "intellectual property", it breaks the age-old "numerus clausus" (closed system) principle of "intellectual property", and "absolute rights" ("iura in rem") in general: until now, the principle is freedom of information (and imitation) unless there is an explicit statute preventing that. An open-ended concept of "intellectual property" law is a major departure from today's substantive law: it would change the entire system of private law.
• Criminal law must be precise and may not contain open concepts, the legality principle ("lex certa" and "lex scripta") is violated.
• Criminal law systems differ considerably: e.g. in some member states "legal persons" (companies) can only be imposed a fine, while in others the "factual leaders" can be imprisoned.
• Right-holders may assist the police with the investigation, help to draw conclusions, this threatens the neutrality of police investigation.
• Criminal investigation authorities should not be able to act on their own initiative without a prior complaint of the rights owner, because licensing arrangements are not published and the rights owner has the fundamental right to dispose of his rights as he desires.
• The directive can be abused.
• Carefully balanced national procedural law systems are distorted.